In re Marriage Cases

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In re Marriage Cases, (2008) 43 Cal.4th 757, [183 P.3d 384, 76 Cal.Rptr.3d 683], is a California Supreme Court case holding "that the California legislative and initiative measures limiting marriage to opposite-sex couples violate the state constitutional rights of same-sex couples and may not be used to preclude same-sex couples from marrying."^[1]

On May 15, 2008, the court ruled in a 4–3 decision that laws directed at gays and lesbians are subject to strict judicial scrutiny and that marriage is a fundamental right under Article 1, Section 7 of the California Constitution, thereby holding unconstitutional the previously existing statutory ban on same-sex marriage known as the "California Defense of Marriage Act." Furthermore, the ruling established that any law discriminating on the basis of sexual orientation is constitutionally suspect, making California the first state in the United States to set such a strict standard.^[2] On June 4, 2008 the court denied the request for rehearing by the same 4-3 majority while unanimously denying a petition for a stay, affirming that the decision would take effect as scheduled.^[3]

The Limit on Marriage Amendment initiative is an attempt to overrule the court's decision by amending the state's constitution. The initiative defines marriage as a union between a man and a woman and will almost certainly be approved as a ballot measure by the California Secretary of State. ^[4]It is likely to be voted upon in the November 2008 election.^[5] However, it is noteworthy that the Court, at footnote 41 indicated that "the right to marry is not properly viewed simply as a benefit or privilege that a government may establish or abolish as it sees fit, but rather that the right constitutes a basic civil or human right of all people." In light of that, at least one legal scholar has raised doubts as to whether the initiative process can amend the constitution and whether any change in this fundamental right has to occur through a constitutional revision which is also provided for in the California Constitution.^[6]

The California Supreme Court joins the Massachusetts Supreme Judicial Court as only the second state to have its highest court rule prohibitions on same-sex marriage unconstitutional.

Contents 1 Procedural history 2 Details 3 Quotations 4 See also 5 External links 6 References

[edit] Procedural history

The county clerk of San Francisco "designed revised forms for the marriage license application and for the license and certificate of marriage, and on February 12, 2004, the city [of San Francisco] began issuing marriage licenses to same-sex couples." On February 13, two organizations, the Proposition 22 Legal Defense and Education Fund, and the Campaign for California Families, filed actions in San Francisco Superior Court (the court of first instance) seeking an immediate stay to prohibit the City from issuing marriage licenses to same-sex couples.^[7]

"After the superior court declined to grant an immediate stay [...] and the City continued to issue marriage licenses to, and solemnize and register marriages of, numerous same-sex couples, the California Attorney General and a number of taxpayers filed two separate petitions seeking to have [the California Supreme Court] issue an original writ of mandate, asserting that the City's actions were unlawful and warranted [the court's] immediate intervention." On March 11, 2004, the California Supreme Court ordered officials of San Francisco "to enforce the existing marriage statutes and to refrain from issuing marriage licenses not authorized by such provisions." The city of San Francisco then filed a petition in superior court, seeking a declaration that "all California statutory provisions limiting marriage to unions between a man and a woman violate the California Constitution." A number of same-sex couples filed two similar actions, and "[s]everal statewide organizations representing many thousands of same-sex couples joined as plaintiffs in these actions."^[8] All six actions were consolidated (coordinated) in a single proceeding called In re Marriage Cases.^[9]

The superior court "held that California's current marriage statutes were unconstitutional under the state Constitution insofar as they limited marriage to opposite-sex couples", and "entered judgment in favor of the plaintiffs in each of the coordinated cases. [...] [T]he Court of Appeal, in a two-to-one decision, reversed the superior court's ruling on the substantive constitutional issue, disagreeing in a number of significant respects with the lower court's analysis of the equal protection issue."^[10]

[edit] Details

In November 2006, several parties petitioned the Supreme Court of California to review the decision.^[11] Despite prevailing in the Court of Appeal, Attorney General Bill Lockyer urged the Supreme Court to take up the case.^[12] In December 2006, the Supreme Court voted unanimously to review all six cases and held oral argument on March 4, 2008.^[11]

On May 15, 2008 the Supreme Court (in a 4–3 ruling) struck down California's existing statutes limiting marriage to opposite-sex couples,^[13] including a 1977 one-man, one-woman marriage law and a similar voter-approved 2000 law, effective in thirty days. The opinion, written by Chief Justice Ronald George, cited the court's 1948 decision that reversed the state's interracial marriages ban. It found that "equal respect and dignity" of marriage is a "basic civil right" that cannot be withheld from same-sex couples, that sexual orientation is a protected class like race and gender, and that any classification or discrimination on the basis of sexual orientation is subject to strict scrutiny under the Equal Protection Clause of the California State Constitution.^[14] It was the first state high court in the country to do so.^[15] The Massachusetts State Supreme Court, by contrast, did not find sexual orientation to be a protected class, and instead voided its gay-marriage ban on rational basis review.^[16]

After the announcement, the Advocates for Faith and Freedom and the Alliance Defense Fund, among others, stated they would ask for a stay of the ruling. Governor Arnold Schwarzenegger immediately issued a statement pledging to uphold the ruling, and repeated his pledge to oppose the Limit on Marriage Amendment.^[17]

In a one-page Resolution, the California Supreme Court on June 4, 2008 denied all petitions for rehearing and to reconsider the May 15 ruling, as it removed the final obstacle to same-sex marriages starting on June 17.^[18] It further rejected moves to delay enforcement of the decision until after the November election, when voters will decide whether to reinstate a ban on same-sex nuptials. Chief Justice Ronald George and Justices Joyce Kennard, Kathryn Mickle Werdegar, and Carlos Moreno voted for the resolution, while dissenting or voting to reconsider the judgment were Justices Marvin Baxter, Ming Chin, and Carol Corrigan.^[19] The judgment stated: "The decision filed on May 15, 2008, will become final on June 16, 2008, at 5 p.m." San Francisco Mayor Gavin Newsom announced that marriages would be held "5:01" on June 16.^[20][21] Moreover, a field poll in late May, reported that "51% of registered voters in the state favored the right of same-sex couples to marry, with 42 percent opposed.".^[20]

[edit] Quotations

In the majority decision:

[U]nder this state's Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.^[22]

[S]trict scrutiny (...) is applicable here because (1) the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents — like gender, race, and religion — a constitutionally suspect basis upon which to impose differential treatment, and (2) the differential treatment at issue impinges upon a same-sex couple's fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.^[23]

[T]he exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples.^[24]

In the concurrence and dissent by Judge Baxter:

Nothing in our Constitution, express or implicit, compels the majority's startling conclusion that the age-old understanding of marriage—an understanding recently confirmed by an initiative law—is no longer valid. California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow. If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means. The majority forecloses this ordinary democratic process, and, in doing so, oversteps its authority.^[25]

[T]he majority's approach has removed the sensitive issues surrounding same-sex marriage from their proper forum—the arena of legislative resolution—and risks opening the door to similar treatment of other, less deserving, claims of a right to marry. By thus moving the policy debate from the legislative process to the court, the majority engages in faulty constitutional analysis and violates the separation of powers.^[26]

If such a profound change in this ancient social institution is to occur, the People and their representatives, who represent the public conscience, should have the right, and the responsibility, to control the pace of that change through the democratic process. Family Code sections 300 and 308.5 serve this salutary purpose. The majority's decision erroneously usurps it.^[27]

In the concurrence and dissent by Judge Corrigan:

The process of reform and familiarization should go forward in the legislative sphere and in society at large. We are in the midst of a major social change. Societies seldom make such changes smoothly. For some the process is frustratingly slow. For others it is jarringly fast. In a democracy, the people should be given a fair chance to set the pace of change without judicial interference. That is the way democracies work. Ideas are proposed, debated, tested. Often new ideas are initially resisted, only to be ultimately embraced. But when ideas are imposed, opposition hardens and progress may be hampered.^[28]

[edit] See also

• Same-sex marriage in California
• Same-sex marriage in the United States

[edit] External links

• Text of the decision
• San Francisco Chronicle: State Supreme Court says same-sex couples have right to marry

[edit] References